Defense Federal Acquisition Regulation Supplement; Additional Requirements Applicable to Multiyear Contracts (DFARS Case 2008-D023), 9114-9116 [2010-2703]
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9114
Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations
text that must be used in the consumer
disclosure at the point of sale.
On January 22, 2010, the Commission
requested emergency approval of the
information collection requirements
from the Office of Management and
Budget (OMB).3 On February 17, 2010,
the Commission received OMB
approval. The OMB control number for
this collection is 3060–1135. This
information collection will be used to
ensure that these microphones do not
continue to be used or continue to be
made available for use in the United
States in the 700 MHz Band, in
contravention of the steps taken by the
Commission to make the 700 MHz Band
available for use by public safety
entities and commercial licensees, and
to provide them a home in the core TV
spectrum.
Federal Communications Commission.
Gloria J. Miles,
Federal Register Liaison.
[FR Doc. 2010–4265 Filed 2–25–10; 4:15 pm]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[DA 10–36, MB Docket No. 07–163, RM–
11385, RM–11416]
FM Table of Allotments, Markham,
Ganado, and Victoria, Texas
mstockstill on DSKH9S0YB1PROD with RULES
AGENCY: Federal Communications
Commission.
ACTION: Final rule.
SUMMARY: The staff grants a rulemaking
petition filed by Katherine Pyeatt to
allot Channel 283A to Markham, Texas,
as a second local service. The staff also
grants a counterproposal filed by Fort
Bend Broadcasting Company, licensee
of Station KHTZ(FM), Ganado, Texas, to
upgrade Station KHTZ(FM) from
Channel 284C2 to Channel 235C and to
modify its license accordingly.
DATES: Effective March 15, 2010.
ADDRESSES: Federal Communications
Commission, 445 12th Street, SW,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT:
Andrew J. Rhodes, Media Bureau, (202)
418–2180.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Report
and Order, MB Docket No. 07–163,
adopted January 27, 2010, and released
3 See Notice of Public Information Collection(s)
Being Submitted for Review and Approval to the
Office of Management and Budget (OMB),
Comments Requested, 75 FR 3731 (January 22,
2010).
VerDate Nov<24>2008
18:16 Feb 26, 2010
Jkt 220001
January 29, 2010. The full text of this
Commission document is available for
inspection and copying during normal
business hours in the FCC Reference
Information Center (Room CY–A257),
445 12th Street, SW., Washington, DC.
The complete text of this decision
may also be purchased from the
Commission’s copy contractor, Best
Copy and Printing, Inc., 445 12th Street,
SW, Room CY–B402, Washington, DC
20554, 800–378–3160 or via the
company’s website, <https://
www.bcpiweb.com>.
The Notice of Proposed Rule Making
in this proceeding proposed the
allotment of Channel 235A at Markham,
Texas. As described above, Fort Bend
Broadcasting proposed the upgrade of
its Station KHTZ(FM), Ganado, Texas,
from Channel 284C2 to Channel 235C at
a new transmitter site and the
modification of its license to specify
operation on non–adjacent Channel
235C. The document explains that it
was not necessary to compare these
conflicting proposals because an
alternate channel is available for
allotment at Markham. Specifically, the
document allots Channel 283A at
Markham in lieu of Channel 235A.
Because the conflict was resolved, the
document also grants Fort Bend’s
counterproposal to upgrade Station
KHTZ(FM) to Channel 235C. To
accommodate this upgrade, the
document substitutes Channel 284C3 for
Channel 236C3 at Victoria, Texas, and
modifies the license for Station
KVIC(FM), Victoria, to specify operation
on Channel 284C3. Finally, because Fort
Bend’s counterproposal involves
licensed stations, the channel
substitutions for Station KHTZ(FM) at
Gandado, Texas, and for KVIC(FM),
Victoria, Texas, will be updated in the
Commission’s Consolidated Data Base
System [CDBS].
This document does not contain new
or modified information collection
requirements subject to the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13.In addition, therefore, it
does not contain any new or modified
information collection burden for small
business concerns with fewer than 25
employees, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
The Commission will send a copy of
the Report & Order in a report to be sent
to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
Provisions of the Regulatory
Flexibility Act of 1980 do not apply to
this proceeding.
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
List of Subjects in 47 CFR Part 73
Radio, Radio broadcasting.
As stated in the preamble, the Federal
Communications Commission amends
47 CFR part 73 as follows:
PART 73—RADIO BROADCAST
SERVICES
1. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 303, 334, 336.
§ 73.202
[Amended]
2. Section 73.202(b), the Table of FM
Allotments under Texas, is amended by
adding Markham, Channel 283A.
■
Federal Communications Commission.
John A. Karousos,
Assistant Chief, Audio Division, Media
Bureau.
[FR Doc. 2010–4131 Filed 2–26–10; 8:45 am]
BILLING CODE 6712–01–S
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 217
Defense Federal Acquisition
Regulation Supplement; Additional
Requirements Applicable to Multiyear
Contracts (DFARS Case 2008–D023)
AGENCY: Defense Acquisition
Regulations System. Department of
Defense (DoD).
ACTION: Interim rule with request for
comments.
SUMMARY: DoD is issuing this interim
rule amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement Section 811 of
the National Defense Authorization Act
(NDAA) for Fiscal Year 2008. Section
811 is applicable to multiyear contracts
for the procurement of major systems of
DoD. This interim rule also implements
section 8008 of the Fiscal Year 2007
Defense Appropriations Act, and the
same language in subsequent DoD
appropriations acts. Section 8008
specifically addresses multiyear
procurement of aircraft.
DATES: Effective March 1, 2010.
Comments on the interim rule should be
submitted to the address shown below
on or before April 30, 2010 to be
considered in the formation of the final
rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2008–D023,
using any of the following methods:
E:\FR\FM\01MRR1.SGM
01MRR1
Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations
Æ Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
Æ E-mail: dfars@osd.mil. Include
DFARS Case 2008–D023 in the subject
line of the message.
Æ Fax: (703) 602–0350.
Æ Mail: Defense Acquisition
Regulations Council, Attn: Ms. Meredith
Murphy, OUSD (AT&L) DPAP (DARS),
3060 Defense Pentagon, Room 3B855,
Washington, DC 20301–3060.
Æ Hand Delivery/Courier: Defense
Acquisition Regulations Council,
Crystal Square 4, Suite 200A, 241 18th
Street, Arlington, VA 22202–3402.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Meredith Murphy, 703–602–1302.
SUPPLEMENTARY INFORMATION:
mstockstill on DSKH9S0YB1PROD with RULES
A. Background
Section 811 of the National Defense
Authorization Act (NDAA) for Fiscal
Year 2008 amends 10 U.S.C. 2306b and
is applicable to multiyear contracts for
the procurement of major systems of
DoD. Section 811 imposes several
additional requirements applicable to
multiyear contracts for the acquisition
of property, including deletion of one
requirement, but the addition of six new
requirements that the Secretary of
Defense must certify in writing in the
year he requests legislative authority to
enter into a multiyear contract. Section
811 requires the Secretary of Defense to
certify in writing, by no later than
March 1 of the year in which the
Secretary requests legislative authority
to enter into a multiyear contract with
respect to Major Defense Acquisition
Programs (MDAPs), that the Secretary of
Defense has made certain cost savings
determinations with regard to such
contract.
DoD has revised DFARS 217.1
accordingly. The revision to the DFARS
does not include 2306b(a)(1)–(5), which
was not revised by Section 811, and
which is covered at Federal Acquisition
Regulation (FAR) 17.105–1(b). These
FAR paragraphs remain applicable to
DOD, National Aeronautics and Space
Administration, and the Coast Guard.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule to have
a significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
VerDate Nov<24>2008
16:31 Feb 26, 2010
Jkt 220001
Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule relates primarily to
internal operating procedures of DoD
and will not have a significant cost or
administrative impact on contractors or
offerors. Therefore, DoD has not
performed an initial regulatory
flexibility analysis.
DoD invites comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by this rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 610 (DFARS Case 2008–D023) in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the rule does not
impose any information collection
requirements that require the approval
of the Office of Management and Budget
under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 217
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 217 is
amended as follows:
■ 1. The authority citation for 48 CFR
part 217 continues to read as follows:
■
Authority: 41 U.S.C. 421 and 48 CFR
Chapter 1.
PART 217—SPECIAL CONTRACTING
METHODS
2. Section 217.170 is amended by
a. Redesignating existing paragraphs
(b), (c), and (d) as paragraphs (c), (d),
and (e), respectively; and
■ b. Adding new paragraph (b) to read
as follows:
■
■
217.170
General.
*
*
*
*
*
(b) Any requests for increased funding
or reprogramming for procurement of a
major system under a multiyear contract
authorized under this section shall be
accompanied by an explanation of how
the request for increased funding affects
the determinations made by the
Secretary of Defense under 217.172(e)(2)
(10 U.S.C. 2306b(i)(1)).
*
*
*
*
*
■ 3. Section 217.172 is amended by:
■ a. Redesignating paragraphs (c)
through (h) as paragraphs (d) through
(i);
■ b. Adding new paragraph (c); and
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
9115
c. Revising newly redesignated
paragraphs (d) and (f).
The addition and revisions read as
follows:
■
217.172
Multiyear contracts for supplies.
*
*
*
*
*
(c) The head of the agency shall not
enter into a multiyear contract unless—
(1) The Secretary of Defense has
submitted to Congress a budget request
for full funding of units to be procured
through the contract; and
(2) In the case of a contract for
procurement of aircraft, the budget
request includes full funding of
procurement funds for production
beyond advance procurement activities
of aircraft units to be produced in the
fiscal year covered by the budget.
(d)(1) The head of the agency must
not enter into or extend a multiyear
contract that exceeds $500 million
(when entered into or extended until the
Secretary of Defense identifies the
contract and any extension in a report
submitted to the congressional defense
committees (10 U.S.C. 2306b(1)(5)).
(2) In addition, for contracts equal to
or greater than $500 million, the head of
the contracting activity must determine
that the conditions required by
paragraphs (f)(2)(i) through (vii) of this
section will be met by such contract, in
accordance with the Secretary’s
certification and determination required
by paragraph (e)(2) of this section (10
U.S.C. 2306b(a)(1)(7)).
*
*
*
*
*
(f) The head of the agency shall
ensure that the following conditions are
satisfied before awarding a multiyear
contract under the authority described
in paragraph (b) of this section:
(1) The multiyear exhibits required by
DoD 7000.14–R, Financial Management
Regulation, are included in the agency’s
budget estimate submission and the
President’s budget request.
(2) The Secretary of Defense certifies
to Congress in writing, by no later than
March 1 of the year in which the
Secretary requests legislative authority
to enter into such contracts, that each of
the conditions in paragraphs (f)(2)(i)
through (vii) of this section are satisfied
(10 U.S.C. 2306b(i)(1)(A)–(G)).
(i) The Secretary has determined that
each of the requirements in FAR 17.105,
paragraphs (b)(1) through (6) will be met
by such contract and has provided the
basis for such determination to the
congressional defense committees (10
U.S.C. 2306b(i)(1)(A)).
(ii) The Secretary’s determination
under paragraph (f)(2)(i) of this section
was made after the completion of a cost
analysis performed by the Cost
Assessment and Program Evaluation
E:\FR\FM\01MRR1.SGM
01MRR1
mstockstill on DSKH9S0YB1PROD with RULES
9116
Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations
(CAPE) of the Department of Defense
and such analysis supports the findings
(10 U.S.C. 2306b(i)(1)(B)).
(iii) The system being acquired
pursuant to such contract has not been
determined to have experienced cost
growth in excess of the critical cost
growth threshold pursuant to section 10
U.S.C. 2433(d) within 5 years prior to
the date the Secretary anticipates such
contract (or a contract for advance
procurement entered into consistent
with the authorization for such contract)
will be awarded (10 U.S.C.
2306b(i)(1)(C)).
(iv) A sufficient number of end items
of the system being acquired under such
contract have been delivered at or
within the most current estimates of the
program acquisition unit cost or
procurement unit cost for such system
to determine that current estimates of
such unit costs are realistic (10 U.S.C.
2306b(i)(1)(D)).
(v) During the fiscal year in which
such contract is to be awarded,
sufficient funds will be available to
perform the contract in such fiscal year,
and the future-years defense program for
such fiscal year will include the funding
required to execute the program without
cancellation (10 U.S.C. 2306b(i)(1)(E)).
(vi) The contract is a fixed price type
contract (10 U.S.C. 2306b(i)(1)(F)).
(vii) The proposed multiyear contract
provides for production at not less than
minimum economic rates, given the
existing tooling and facilities. The head
of the agency shall submit to USD(C)(P/
B) information supporting the agency’s
determination that this requirement has
been met (10 U.S.C. 2306b(i)(1)(G)).
(viii) The head of the agency shall
submit information supporting this
certification to USD(C)(P/B) for
transmission to Congress through the
Secretary of Defense.
(ix) In the case of a contract with a
cancellation ceiling in excess of $100
million, if the budget for the contract
does not include proposed funding for
the costs of contract cancellation up to
the cancellation ceiling established in
the contract—
(A) The head of the agency shall, as
part of this certification, give written
notification to the congressional defense
committees of—
(1) The cancellation ceiling amounts
planned for each program year in the
proposed multiyear contract, together
with the reasons for the amounts
planned;
(2) The extent to which costs of
contract cancellation are not included in
the budget for the contract; and
(3) A financial risk assessment of not
including the budgeting for costs of
VerDate Nov<24>2008
16:31 Feb 26, 2010
Jkt 220001
contract cancellation (10 U.S.C.
2306b(g)); and
(B) The head of the agency shall
provide copies of the notification to the
Office of Management and Budget at
least 14 days before contract award in
accordance with the procedures at PGI
217.1.
(3) If the value of a multiyear contract
for a particular system or component
exceeds $500 million, use of a multiyear
contract is specifically authorized by—
(i) An appropriations act (10 U.S.C.
2306b(l)(3)); and
(ii) A law other than an
appropriations act (10 U.S.C.
2306b(i)(3)).
(4) The contract is for the
procurement of a complete and usable
end item (10 U.S.C. 2306b(i)(4)(A)).
(5) Funds appropriated for any fiscal
year for advance procurement are
obligated only for the procurement of
those long-lead items that are necessary
in order to meet a planned delivery
schedule for complete major end items
that are programmed under the contract
to be acquired with funds appropriated
for a subsequent fiscal year (including
an economic order quantity of such
long-lead items when authorized by law
(10 U.S.C. 2306b(i)(4)(b)).
(6) The Secretary may make the
certification under paragraph (f)(2) of
this section notwithstanding the fact
that one or more of the conditions of
such certification are not met if the
Secretary determines that, due to
exceptional circumstances, proceeding
with a multiyear contract under this
section is in the best interest of the
Department of Defense and the
Secretary provides the basis for such
determination with the certification (10
U.S.C. 2306b(i)(5)).
(7) The Secretary of Defense may not
delegate this authority to make the
certification under 217.172(f)(2) or the
determination under 217.172(f)(6) to an
official below the level of the Under
Secretary of Defense for Acquisition,
Technology, and Logistics (10 U.S.C.
2306b(i)(6)).
(8) The Secretary of Defense shall
send a notification containing the
findings of the agency head under FAR
17.105(b), and the basis for such
findings, 30 days prior to the award of
a multiyear contract or a defense
acquisition program that has been
specifically authorized by law ((10
U.S.C. 2306b(i)(7)).
(9) All other requirements of law are
met and there are no other statutory
restrictions on using a multiyear
contract for the specific system or
component (10 U.S.C. 2306b(i)(2)). One
such restriction may be the achievement
of specified cost savings. If the agency
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
finds, after negotiations with the
contractor(s), that the specified savings
cannot be achieved, the head of the
agency shall assess the savings that,
nevertheless, could be achieved by
using a multiyear contract. If the savings
are substantial, the head of the agency
may request relief from the law’s
specific savings requirement. The
request shall—
(i) Quantify the savings that can be
achieved;
(ii) Explain any other benefits to the
Government of using the multiyear
contract;
(iii) Include details regarding the
negotiated contract terms and
conditions; and
(iv) Be submitted to OUSD (AT&L)
DPAP for transmission to Congress via
the Secretary of Defense and the
President.
[FR Doc. 2010–2703 Filed 2–26–10; 8:45 am]
BILLING CODE 5001–08–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 090206140–91414–04]
RIN 0648–AX39
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Reef Fish
Fishery of the Gulf of Mexico;
Amendment 29 Supplement
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
SUMMARY: NMFS issues this final rule to
supplement the regulations
implementing Amendment 29 to the
Fishery Management Plan for Reef Fish
Resources of the Gulf of Mexico (FMP),
as prepared and submitted by the Gulf
of Mexico Fishery Management Council
(Council). Amendment 29 established a
multi-species individual fishing quota
(IFQ) program for the grouper and
tilefish component of the commercial
sector of the reef fish fishery in the Gulf
of Mexico (Gulf) exclusive economic
zone. This final rule removes several
measures constraining harvest of
shallow-water grouper species that were
inadvertently not removed in the final
rule for Amendment 29, further clarifies
existing criteria for approval of new
landing locations for both the red
snapper IFQ program and grouper and
tilefish IFQ program, and provides a
E:\FR\FM\01MRR1.SGM
01MRR1
]]>Agencies
[Federal Register Volume 75, Number 39 (Monday, March 1, 2010)]
[Rules and Regulations]
[Pages 9114-9116]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2703]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 217
Defense Federal Acquisition Regulation Supplement; Additional
Requirements Applicable to Multiyear Contracts (DFARS Case 2008-D023)
AGENCY: Defense Acquisition Regulations System. Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing this interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement Section 811 of
the National Defense Authorization Act (NDAA) for Fiscal Year 2008.
Section 811 is applicable to multiyear contracts for the procurement of
major systems of DoD. This interim rule also implements section 8008 of
the Fiscal Year 2007 Defense Appropriations Act, and the same language
in subsequent DoD appropriations acts. Section 8008 specifically
addresses multiyear procurement of aircraft.
DATES: Effective March 1, 2010. Comments on the interim rule should be
submitted to the address shown below on or before April 30, 2010 to be
considered in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2008-D023,
using any of the following methods:
[[Page 9115]]
[cir] Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: dfars@osd.mil. Include DFARS Case 2008-D023 in the
subject line of the message.
[cir] Fax: (703) 602-0350.
[cir] Mail: Defense Acquisition Regulations Council, Attn: Ms.
Meredith Murphy, OUSD (AT&L) DPAP (DARS), 3060 Defense Pentagon, Room
3B855, Washington, DC 20301-3060.
[cir] Hand Delivery/Courier: Defense Acquisition Regulations
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, 703-602-1302.
SUPPLEMENTARY INFORMATION:
A. Background
Section 811 of the National Defense Authorization Act (NDAA) for
Fiscal Year 2008 amends 10 U.S.C. 2306b and is applicable to multiyear
contracts for the procurement of major systems of DoD. Section 811
imposes several additional requirements applicable to multiyear
contracts for the acquisition of property, including deletion of one
requirement, but the addition of six new requirements that the
Secretary of Defense must certify in writing in the year he requests
legislative authority to enter into a multiyear contract. Section 811
requires the Secretary of Defense to certify in writing, by no later
than March 1 of the year in which the Secretary requests legislative
authority to enter into a multiyear contract with respect to Major
Defense Acquisition Programs (MDAPs), that the Secretary of Defense has
made certain cost savings determinations with regard to such contract.
DoD has revised DFARS 217.1 accordingly. The revision to the DFARS
does not include 2306b(a)(1)-(5), which was not revised by Section 811,
and which is covered at Federal Acquisition Regulation (FAR) 17.105-
1(b). These FAR paragraphs remain applicable to DOD, National
Aeronautics and Space Administration, and the Coast Guard.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
relates primarily to internal operating procedures of DoD and will not
have a significant cost or administrative impact on contractors or
offerors. Therefore, DoD has not performed an initial regulatory
flexibility analysis.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2008-D023) in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Parts 217
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR part 217 is amended as follows:
0
1. The authority citation for 48 CFR part 217 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 217--SPECIAL CONTRACTING METHODS
0
2. Section 217.170 is amended by
0
a. Redesignating existing paragraphs (b), (c), and (d) as paragraphs
(c), (d), and (e), respectively; and
0
b. Adding new paragraph (b) to read as follows:
217.170 General.
* * * * *
(b) Any requests for increased funding or reprogramming for
procurement of a major system under a multiyear contract authorized
under this section shall be accompanied by an explanation of how the
request for increased funding affects the determinations made by the
Secretary of Defense under 217.172(e)(2) (10 U.S.C. 2306b(i)(1)).
* * * * *
0
3. Section 217.172 is amended by:
0
a. Redesignating paragraphs (c) through (h) as paragraphs (d) through
(i);
0
b. Adding new paragraph (c); and
0
c. Revising newly redesignated paragraphs (d) and (f).
The addition and revisions read as follows:
217.172 Multiyear contracts for supplies.
* * * * *
(c) The head of the agency shall not enter into a multiyear
contract unless--
(1) The Secretary of Defense has submitted to Congress a budget
request for full funding of units to be procured through the contract;
and
(2) In the case of a contract for procurement of aircraft, the
budget request includes full funding of procurement funds for
production beyond advance procurement activities of aircraft units to
be produced in the fiscal year covered by the budget.
(d)(1) The head of the agency must not enter into or extend a
multiyear contract that exceeds $500 million (when entered into or
extended until the Secretary of Defense identifies the contract and any
extension in a report submitted to the congressional defense committees
(10 U.S.C. 2306b(1)(5)).
(2) In addition, for contracts equal to or greater than $500
million, the head of the contracting activity must determine that the
conditions required by paragraphs (f)(2)(i) through (vii) of this
section will be met by such contract, in accordance with the
Secretary's certification and determination required by paragraph
(e)(2) of this section (10 U.S.C. 2306b(a)(1)(7)).
* * * * *
(f) The head of the agency shall ensure that the following
conditions are satisfied before awarding a multiyear contract under the
authority described in paragraph (b) of this section:
(1) The multiyear exhibits required by DoD 7000.14-R, Financial
Management Regulation, are included in the agency's budget estimate
submission and the President's budget request.
(2) The Secretary of Defense certifies to Congress in writing, by
no later than March 1 of the year in which the Secretary requests
legislative authority to enter into such contracts, that each of the
conditions in paragraphs (f)(2)(i) through (vii) of this section are
satisfied (10 U.S.C. 2306b(i)(1)(A)-(G)).
(i) The Secretary has determined that each of the requirements in
FAR 17.105, paragraphs (b)(1) through (6) will be met by such contract
and has provided the basis for such determination to the congressional
defense committees (10 U.S.C. 2306b(i)(1)(A)).
(ii) The Secretary's determination under paragraph (f)(2)(i) of
this section was made after the completion of a cost analysis performed
by the Cost Assessment and Program Evaluation
[[Page 9116]]
(CAPE) of the Department of Defense and such analysis supports the
findings (10 U.S.C. 2306b(i)(1)(B)).
(iii) The system being acquired pursuant to such contract has not
been determined to have experienced cost growth in excess of the
critical cost growth threshold pursuant to section 10 U.S.C. 2433(d)
within 5 years prior to the date the Secretary anticipates such
contract (or a contract for advance procurement entered into consistent
with the authorization for such contract) will be awarded (10 U.S.C.
2306b(i)(1)(C)).
(iv) A sufficient number of end items of the system being acquired
under such contract have been delivered at or within the most current
estimates of the program acquisition unit cost or procurement unit cost
for such system to determine that current estimates of such unit costs
are realistic (10 U.S.C. 2306b(i)(1)(D)).
(v) During the fiscal year in which such contract is to be awarded,
sufficient funds will be available to perform the contract in such
fiscal year, and the future-years defense program for such fiscal year
will include the funding required to execute the program without
cancellation (10 U.S.C. 2306b(i)(1)(E)).
(vi) The contract is a fixed price type contract (10 U.S.C.
2306b(i)(1)(F)).
(vii) The proposed multiyear contract provides for production at
not less than minimum economic rates, given the existing tooling and
facilities. The head of the agency shall submit to USD(C)(P/B)
information supporting the agency's determination that this requirement
has been met (10 U.S.C. 2306b(i)(1)(G)).
(viii) The head of the agency shall submit information supporting
this certification to USD(C)(P/B) for transmission to Congress through
the Secretary of Defense.
(ix) In the case of a contract with a cancellation ceiling in
excess of $100 million, if the budget for the contract does not include
proposed funding for the costs of contract cancellation up to the
cancellation ceiling established in the contract--
(A) The head of the agency shall, as part of this certification,
give written notification to the congressional defense committees of--
(1) The cancellation ceiling amounts planned for each program year
in the proposed multiyear contract, together with the reasons for the
amounts planned;
(2) The extent to which costs of contract cancellation are not
included in the budget for the contract; and
(3) A financial risk assessment of not including the budgeting for
costs of contract cancellation (10 U.S.C. 2306b(g)); and
(B) The head of the agency shall provide copies of the notification
to the Office of Management and Budget at least 14 days before contract
award in accordance with the procedures at PGI 217.1.
(3) If the value of a multiyear contract for a particular system or
component exceeds $500 million, use of a multiyear contract is
specifically authorized by--
(i) An appropriations act (10 U.S.C. 2306b(l)(3)); and
(ii) A law other than an appropriations act (10 U.S.C.
2306b(i)(3)).
(4) The contract is for the procurement of a complete and usable
end item (10 U.S.C. 2306b(i)(4)(A)).
(5) Funds appropriated for any fiscal year for advance procurement
are obligated only for the procurement of those long-lead items that
are necessary in order to meet a planned delivery schedule for complete
major end items that are programmed under the contract to be acquired
with funds appropriated for a subsequent fiscal year (including an
economic order quantity of such long-lead items when authorized by law
(10 U.S.C. 2306b(i)(4)(b)).
(6) The Secretary may make the certification under paragraph (f)(2)
of this section notwithstanding the fact that one or more of the
conditions of such certification are not met if the Secretary
determines that, due to exceptional circumstances, proceeding with a
multiyear contract under this section is in the best interest of the
Department of Defense and the Secretary provides the basis for such
determination with the certification (10 U.S.C. 2306b(i)(5)).
(7) The Secretary of Defense may not delegate this authority to
make the certification under 217.172(f)(2) or the determination under
217.172(f)(6) to an official below the level of the Under Secretary of
Defense for Acquisition, Technology, and Logistics (10 U.S.C.
2306b(i)(6)).
(8) The Secretary of Defense shall send a notification containing
the findings of the agency head under FAR 17.105(b), and the basis for
such findings, 30 days prior to the award of a multiyear contract or a
defense acquisition program that has been specifically authorized by
law ((10 U.S.C. 2306b(i)(7)).
(9) All other requirements of law are met and there are no other
statutory restrictions on using a multiyear contract for the specific
system or component (10 U.S.C. 2306b(i)(2)). One such restriction may
be the achievement of specified cost savings. If the agency finds,
after negotiations with the contractor(s), that the specified savings
cannot be achieved, the head of the agency shall assess the savings
that, nevertheless, could be achieved by using a multiyear contract. If
the savings are substantial, the head of the agency may request relief
from the law's specific savings requirement. The request shall--
(i) Quantify the savings that can be achieved;
(ii) Explain any other benefits to the Government of using the
multiyear contract;
(iii) Include details regarding the negotiated contract terms and
conditions; and
(iv) Be submitted to OUSD (AT&L) DPAP for transmission to Congress
via the Secretary of Defense and the President.
[FR Doc. 2010-2703 Filed 2-26-10; 8:45 am]
BILLING CODE 5001-08-P
